Owners Of Old, Abandoned Hotel Threaten Guy Who Photographed It With Copyright Infringement

from the new-funding-strategy? dept

Alex alerts us to yet another case of someone abusing copyright law to threaten someone. The story begins with Sherman Cahal, who runs the awesome site AbandonedOnline.net, on which he posts photographs from abandoned buildings. He recently posted photographs of the Waldo Hotel in Clarksburg, West Virginia. As you can see at the link, he doesn't just put up photos, but a rather detailed history of the building itself. Then there are a bunch of exterior photos, interior photos and even some historic photos of the building. I have to admit that I'm a sucker for this kind of photography. Check out just this one shot of the lobby, and then click on the links above to see the rest:

Of course, not everyone thought it was cool. In particular, the Vandalia Heritage Foundation, who currently owns the building and has been trying to raise money to restore it, sent Cahal a letter complaining about the photos, telling him that the photos were both evidence of trespassing and copyright infringement. While Cahal did not post the full letter there, I've seen the letter, and here's the specific part:

No individual with the Vandalia Heritage Foundation has authorized the creation, publication or copyrights of these photos. If you believe this is in error, please forward the contractual agreement stating permission to create, publish and copyright photos of the Waldo Hotel interior and roof to the following mailing address:

ATTENTION LEGAL DEPARTMENT
{redacted}
In addition, you can forward the contractual agreement stating permission to create, publish and copyright photos of the Waldo Hotel interior and roof to the following email address:
{redacted}

We formally request that all unauthorized Waldo Hotel interior and roof photos be removed from the following websites unless evidence of previous permission to do such can be provided

Later in the letter, they try to make things more "informal," but still remain pretty threatening:

Although still official, we would like to also address you in an informal tone. We understand that the articles associated with the Waldo Hotel on abandonedonline.net is in favor of preservation and revitalization of the property. And preservation and revitalization is what we do. However, there are multiple problems with the approach you decided to take. One, breaking and entering and/or trespassing was the only method by which these photos could have been taken. This costs us time, money, liability and security issues. Two, these photos are unauthorized and may contain content that damages efforts to save the hotel. Three, these photos are wrongly copyrighted by Sherman Cahal and it deprives us of our rights to profits or benefits. And similarly, four, these photos are being sold for personal gain on shermancahal.com which, again, deprives us of our rights to profits or benefits.

Now obviously this is not a cease and desist letter from an attorney. And that’s not the route we want to take. Paying an attorney to handle this would cost us time and money that would be better focused on restoring the Waldo Hotel. But consider this a warning shot and we will pursue further action if these requests are ignored.

If you are willing to donate photos - that we officially sign off on - to the Waldo Hotel Preservation Society for fundraising and informational purposes, we support that.

The problem with all of this is that the claims on copyright are almost certainly complete bunk. The group seems to assume that because they own the building, they automatically hold the copyright on any photographs of the building. This is a common misconception. While you can copyright architecture, that copyright does not prevent photographs. Basically, the copyright claim is ridiculous.

Cahal seems to understand this, and gave the Vandalia Heritage Foundation a quick lesson in copyright law. He also notes that even the trespassing claim they have is pretty weak. Either way, after educating the Foundation on copyright law, the Foundation realized that perhaps it was making a mistake. What's amazing is that they thought this was an appropriate tactic in the first place. Threatening Cahal for publicizing the building they've been trying for years to raise money to renovate seems counterproductive. These kinds of photos provide more publicity and perhaps more interest in the possibility of restoring the building.

It's pretty frustrating when you hear these kinds of stories. Even though it turned out okay in the end, this is yet another symptom of "ownership society," where people misunderstand and abuse copyright law to threaten people who are expressing themselves.

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

Assuming that the statement is correct that the photographs could NOT have been taken without trespassing (and therefore we can assume not visible from a public place), then doesn't it follow that Cahal cannot have copyright on the photos he took illegally? I'm sorry, but something doesn't follow in this story.

Re: Photos not availavle from links/website

I have to wonder. Is the image that is displayed in a place that is "normally visible from the public place"? It seems to be the inside of the building. Did the photographer have to trespass to get access? Or can anyone from the public see that location from the public place?

Jesus, Mike. Techturd is not a law blog, but it does have post after post after post about the law. LMAO! Such dishonesty. 17 U.S.C. 120 does not apply here. Contrary to your baseless belief otherwise, photographers don't have an unlimited right to take pictures while on private property. Your "analysis" completely misses the mark--again.

Your feigned lament at the end about people who "misunderstand and abuse copyright law" is laughable since you are systematically one of the worst when it comes to misrepresenting copyright law. You're a fucking joke. Seriously.

In total 4 reasons they have no claim

2. Owning the building confers no status in respect to the architectural copyright (the architects heirs would own that if it still existed)

3. Claims on the architecture don't affect copyright on photographs of the building.

4. Having the legal right to be there has no effect on copyright (If JK Rowling wrote part of Harry Potter whilst fare dodging on the London Underground it wouldn't give her copyrights to Boris Johnson!)

Pics are gone

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The right to take pictures is separate from what you do with those pictures once they are taken.

You don't have the right to speed. Nothing stops you from telling people about your experiences doing it though. He might not have the right to take those pictures, but nothing stops him from showing them once he has them.

In either case I'd like to see a citation that says he didn't have the right to take the pictures. He may not have had the right to be in the building (i.e. trespassing), but I don't know of any law that says he can't take pictures.

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actually, in many states, failure to secure your property or place notice of trespassing means anyone can enter the property without recourse.

if there were no signs stating trespass,and we know no one was there to inform the public they cannot enter, he is fine. If you can just walk into an unsecured space, then he is fine with copyright. he broke no laws, and violated no copyright.

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What? That makes very little sense. In that case, no architectural work in a private building can possibly be protected, since through the same line of logic, the building is visible from a public place (so therefore the prior applies).

Also, if the building itself is located in a public place, then the lawyers would have no standing to accuse Cahal of trespassing. I would assume that because the lawyers DID accuse Cahal of trespassing, the building is not a public building.

its not copyright that is the problem

To publish images of the building he should have made inquires as to ownership of it and obtained a property release, much like a model release works with a portrait.

Its understandable that since it has been left to decay he may have not considered this. I really started to turn off from photography when during my studies we got to copyright, model/property releases, I remember one student who took a shot of a huge tree, he was not allowed to submit his work as he was supposed to track down the owner of the land and get a property release for the tree. I just thought this ridiculous, but it was the proper procedure.

I think this is the mistake the building owners made, quoting copyright rather than release. (really takes all the fun and spontaneity out of a days shoot)

Copyright lies with the photographer, but without the release there is a chance of being sued for publishing the images. Trespass laws differ depending where you are, I'm in Scotland and the law is much more relaxed than it is in England, if there is already a hole in the fence or railings around a property and you cause no damage then there is no charge, but you can be done in England for just sitting on someones wall. I'm sure the law elsewhere differs in much the same way.

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(4) "Posted land" is that land upon which reasonably maintained signs are placed not more than five hundred feet apart along and at each corner of the boundaries of the land, upon which signs there appears prominently in letters of not less than two inches in height the words "no trespassing" and in addition thereto the name of the owner, lessee or occupant of the land. The signs shall be placed along the boundary line of posted land in a manner and in a position as to be clearly noticeable from outside of the boundary line. It shall not be necessary to give notice by posting on any enclosed land or place not exceeding five acres in area on which there is a dwelling house or property that by its nature and use is obviously private in order to obtain the benefits of this article pertaining to trespass on enclosed lands.

Re: its not copyright that is the problem

> To publish images of the building he should
> have made inquires as to ownership of it and
> obtained a property release

Says who? Certainly not the law in America (where these photos were taken).

> I remember one student who took a shot of a
> huge tree, he was not allowed to submit his
> work as he was supposed to track down the
> owner of the land and get a property release
> for the tree

I don't know why someone would say he was 'supposed' to do that. The law certainly doesn't require it.

> but without the release there is a chance of
> being sued for publishing the images

Sue based on what? In order to successfully sue (or even make a prima facie showing that will survive summary judgment), you have to show that your claim is somehow based in law. What law says I can't publish a picture of a tree without its owner's permission?

I've experience a similar run-in

Quite a few years ago, while visiting the hometown of my spouse in an eastern US location, I stopped to take some photos of a little, one room, small town US Post Office. While I was snapping the shutter, a fellow came charging out of the Post Office and told me that I had no right to photograph his building.

When I mentioned that as a US Post Office, it was a public building, he told me that they Post Office only rents from him and that no one has the right to take photos without his permission.

My spouse then mentioned that people in the area have been known to carry firearms and weren't keen on outsiders, especially Northerners, I figured that it was time to cease work and get the heck out of the neighborhood. It probably didn't help any that I also had "Yankee" license plates on my car.

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Wait, I'm not seeing how that law applies. It states that signs are necessary with a couple of exceptions:
1) The land or place must be less than 5 acres. Check, it's less than 5 acres so it might not be necessary.
2) by its nature and use is obviously private. Not necessarily check. It's nature is a hotel which are public, its use is abandoned. So it might be that a "No trespassing" sign was needed.

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It shall not be necessary to give notice by posting on any enclosed land or place not exceeding five acres in area on which there is a dwelling house or property that by its nature and use is obviously private in order to obtain the benefits of this article pertaining to trespass on enclosed lands.

The property was a hotel and therefore is a public space. By this law, they would be required to post "no trespassing" signs containing those words and the owner's name, lessee or occupant.
What does not seem to be mentioned by this section of the law is the situation whereby someone removes those signs leaving no evidence as to their prior existence.

good manners, perhaps

If you take photos or video in a venue of a performer, you do have to ask the venue for permission. It is simply good manners and wise, (as they can throw you out)! If they do not throw you out then the photographer owns the copyright (for the photograph, not the building).

I take lots of photos of buildings exteriors (as art) and never dreamed of asking for copyright permission. You can not copyright an object or a location.

So, I agree that their fairly good natured threats are pointless. If anything it highlights that they need to raise more funds for restoration and it is journalism.

It is not evidence of trespass. That amounts to heresay. Maybe someone opened the door for him and gave him permission to be there or the door was missing. They would have to catch him in the act to prove that. And he could just remove himself.

Indeed, in mad old Britain, the Government intend to revise squatting laws that allow uninhabited buildings to be occupied by residents and the police (currently) have very limited powers to remove them.

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"if there were no signs stating trespass,and we know no one was there to inform the public they cannot enter, he is fine. If you can just walk into an unsecured space, then he is fine with copyright. he broke no laws, and violated no copyright."

while I appreciate your support for this idea, this statement is factually wrong and conflates 2 separate ideas that have nothing to do with each other legally.

-You are correct about the tresspass/security and whether he can legally enter or not.
-Which has zero to do with copyright. Breaking a tresspassing law does not automatically make one guilty of any copyright law, as the two laws cover different things.

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To me a hotel is not public, it's a private building open to the public, like a mall for example (try taking photos there, security are on you right away), just because it is in a state of decay doesn't mean it's any less a private property. Also it depends on the use of the image, I didn't visit the website it was posted in, so not sure if he offers prints of his work, that's when it gets problematic, even for small returns, I would even be cautious of posting to a site that has an ad's banner on it that generates an income over time with visits to the pages with the images that don't have the release on them.

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Once again, Mike is completely wrong. Go figure!

"A property release says that the owner of a certain property, such as a pet or a building, has given you consent to take and use images of the property. You don’t need one for public property, such as government buildings (although you may run into problems just from photographing them, for security reasons). But for images of private property — and particularly of objects that are closely identified with specific people — you are safer if you get a release."

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Re: Re: Re: Re: Re: its not copyright that is the problem

Even publication is legal without a model release form (see the paparazzi for example). The publication has to be in some commercial enterprise where the model could be construed as supporting that commerce, such as an advertisement.

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Of course the hotel is private property. That has nothing to do with it. Hotels are by nature open to the public, so it's not obvious (on account of it being a hotel) that no one was permitted inside, thus the law requires no trespassing signs to be placed.

To go with your security in the mall example, they can be upset that you took pictures, and they can ask you to leave to prevent you from taking pictures, but the taking of the pictures and the permission to be on the property are separate issues. To my knowledge there is no law that states you cannot take pictures on private property. The owners of that property can keep you from doing that by keeping you out of the property, they can bar your entrance if you have a picture taking device, they can ask you to leave to keep you from taking more pictures, but that isn't law. The only law here is the trespassing issue, not the taking of the pictures issue.

Re: In total 4 reasons they have no claim

The original architect's drawings are out of copyright. The building itself isn't copyrighted, but images of the building may be, depending upon the circumstances. The issue here is of modern images taken of the building.

If the views within the image are from a position whereby the public could reasonably be expected to have access to take the pictures, then the photographer could claim copyright. If not, then no, he could not.

So the question comes down to whether the pictures in question could have been taken from a public vantage point. Considering the state of the building and the hazards clearly evident, I would hope not, but not being near the hotel, I cannot tell if the current owners have taken necessary steps to prevent trespassing.

But in a nutshell, your argument that "the building architecture is out of copyright" is spurious and irrelevant.

Re: Re: In total 4 reasons they have no claim

The building itself isn't copyrighted, but images of the building may be, depending upon the circumstances. The issue here is of modern images taken of the building.

The copyright of these images lies with the photographer.

If the views within the image are from a position whereby the public could reasonably be expected to have access to take the pictures, then the photographer could claim copyright. If not, then no, he could not.

Not true. Being on the premises is a trespassing issue - it does not affect the copyright in any way.

This point has been made multiple times by multiple commenters on this post. If you read copyright law you will see that nowhere does it give any rights to anyone because they own a piece of physical property. Copyright always lies with the creator of a work unless and until he assigns it to someone else.
For example the copyright in a painting lies with the artist. Owning a picture does not establish copyright. If you own a painting but (as is usually the case) the artist retains copyright he can break into your, take a picture of the painting (which you are not entitled to do!) and he owns the copyright in the resulting photograph (you may still be able to sue him for tresapass.

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Contrary to your baseless belief otherwise, photographers don't have an unlimited right to take pictures while on private property

I never said they had an unlimited right to take photos. But I did say that the owner of the building does not have the copyright on those photos. And I stand by that.

You failed to explain anything otherwise.

On a separate note, it's pretty obvious who you are from your tone and word choices. It's funny that you think you're anonymous and then give it away by acting in the same foot-stomping, childish manner. What's the use of trying to hide your identity?

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I think that may depend upon what defenses the property has. Was there a fence? Where there no tresspassing signs? If not, then there may not be a violation, but what do we know of local tresspass laws?

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Once again, Mike is completely wrong. Go figure!

"A property release says that the owner of a certain property, such as a pet or a building, has given you consent to take and use images of the property. You don’t need one for public property, such as government buildings (although you may run into problems just from photographing them, for security reasons). But for images of private property — and particularly of objects that are closely identified with specific people — you are safer if you get a release."

And what law are you quoting? Note that even what you are quoting does not specifically refer to copyright, and merely says "you are safer."

So, please tell me which law says the owner of the building holds the copyright on the photos taken in the building. If you can't, will you admit that I wasn't "completely wrong"? I doubt it. Go figure!

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When you use the word "law" I presume you are doing so in the context of a statute. Importantly, though, there is much "law" that is non-statutory and arises from a compendium of judicial decisions known as "common law".

Not that it would apply here, but I can envision an extreme set of facts where the photographer would not be able to claim ownership of copyright under the doctrine of a "constructive trust". Clearly, though, if the doctrine was ever to be applied the underlying facts would truly be exreme.

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If film is confiscated and not given back, then that is larceny, or Detinue at the very least, or Trover if film/camera damaged. Also the taker could be charged with assault.

Copyright resides with the photographer whether that photographer took the pictures whilst doing something unlawful like trespass, which has to be proven, does not in any way mitigate the ownership of the copyright on the photos themselves.

The only reason ever that photographs can be held legally is for purposes of discovery (evidence) though they are still copyrighted to the photographer (Unless work for hire, and that is not in the case) and after the evidential/discovery process they have to be returned or the holder can be charged as above.

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Copyright doesn't care how the images are created or under what circumstances, it just is.

If a photograph is created by an illegal or unlawful act it is STILL copyrighted to the person who took it and no one can remove that copyright.

The only way for a photographer not to own copyright in a picture they took is if the photographer is acting as an agent for someone else ie: Work for Hire and the photo is a part of that contractual agreement.

An owner of a property can stop you taking pictures, but has no lawful ability to destroy ones already taken.

Re: Re: The Architect, not the owners, hold the copyright monopoly here.

Yes there is, for criminal prosecution there is "Malicious prosecution" as an intentional tort.

For civil there is the tort "abuse of process"

Both of them need the basic elements of
* Intentionally and maliciously making & following through (or getting some other authority to) a civil or criminal action, and
* The action MUST be without probable cause
* The action MUST be dismissed in favour of the respondent/defendant.
* The action MUST of caused injury/harm. Note: harm does NOT include harm to reputation though, that is covered by defamation already, it must be equitable (tangible) harm like loss of wages etc.

Re: Re: The Architect, not the owners, hold the copyright monopoly here.

Yes there is, for criminal prosecution there is "Malicious prosecution" as an intentional tort.

For civil there is the tort "abuse of process"

Both of them need the basic elements of
* Intentionally and maliciously making & following through (or getting some other authority to) a civil or criminal action, and
* The action MUST be without probable cause
* The action MUST be dismissed in favour of the respondent/defendant.
* The action MUST of caused injury/harm. Note: harm does NOT include harm to reputation though, that is covered by defamation already, it must be equitable (tangible) harm like loss of wages etc.

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Re: its not copyright that is the problem

Sorry Tracy, but a property release like a model releases is ONLY for commercial usage of photos.

Unlike what the connotation of the word 'commercial' means to most people, in the context of copyright it means something totally different.

In copyright (in this case a photograph) commercial usage is the means of using a photograph to advertise, promote, or otherwise influence someone to do something else for commercial purposes.

This means if he was using the photograph to advertise the building, or to promote a book he was writing on the building then both those examples would be for commercial use.

If on the other hand he sells it to an art gallery, places it online for sale by itself or part of a collection, or in any other way shape or form then it in NOT commercial usage and does not require a 'property release'.

Though this doesn't mean you shouldn't get a property release since then you really cannot be charged for trespass since you were authorised, also its just good business practice for professional and amateur photographers.

Re: Re: its not copyright that is the problem

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You are correct, it is a determination to be made at a later date, and under the doctrine (if the facts are ever sufficiently egregious that it would come into play) the end result would be that the photographer would be required to assign the copyright to the adverse party.

It is correct, however, to say that this is a highly unusual form of relief.

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Ahh, so it's a word game.

No, the hotel owner doesn't have the copyright on the images. But they do have the rights to their location, and only through permission would the photographer have normally been allowed inside to take images.

The images were taken by trespass, and therefore are the "fruit of the poisoned tree", if you want to say it that way. I doubt he has a location release for the images.

I would say the hotel owners are being nice, they could have legally drilled him a new eye hole and they would have won.

Re: Re: its not copyright that is the problem

Though this doesn't mean you shouldn't get a property release since then you really cannot be charged for trespass since you were authorised, also its just good business practice for professional and amateur photographers

I wouldn't bother to get a formal "property release" in this type of case - but asking permission is generally a good idea (if you think you will get it). Most people will be reasonable and may well help to facilitate access.

Reply

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And in the reply, I cited the specific statue from the West Virginia Code on Trespass, which removes any doubt that I am free from any future prosecution on those specific charges. Now, if the organization wants to pursue a court case, it would be very weak if they can't even pursue their bogus copyright or trespassing claim. I'm not sweating.

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Copyright in this instance would not be a crime--it would be a civil matter. It is unlikely that seizure of photographs or any physical property (brought in by the photo taker) would be supported by law.

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It would be highly unlikely that that would happen. It would set a bad precedent. Just imagine, if you were taking photographs at a festival and someone wanted to claim copyright on your photos just because they were in it. Or if you were backpacking in the Mon National Forest and the U.S. Forest Service wanted to claim copyright and usage over your images? Copyright laws are clear in this instance at least - that copyright extends only to the individual who took the photograph.

There are, unfortunately, exceptions. The Port Authority of NY/NJ asked me to not take photos of a bridge for one of my sites (http://www.bridgestunnels.com) for "security" reasons, and that they would need to hold my photographs and claim ownership if they wanted to release them back to me. I left and came back 20 minutes later to finish my work. But it's crap like that that really calls for a total revision of our copyright statues and laws, and to press for more journalistic and photographic freedoms that have been slowly ebbing away for years. Just my two cents.

Owners of Old Abandoned Hotel

The Waldo Hotel has been broken into frequently. Although it is under condemnation order by code enforcement of the City of Clarksburg, WV...this order by the city posted by the front doors makes it illegal to enter the building at anytime Cahal apparently did not have the permission of Vandalia to enter the building at anytime to take pictures.
Anyone caught in the building or entering the building are subject to arrest by the Clarksburg Police Department. I am not saying this to offend anyone, but, pointing out the facts.

It was after the city brought in a engineering firm and Vandalia brought one in that it was decided to remove the radiator heating system due to the weight of these causing stress on the floors. Therefore the boilers in the basement were removed and the money from that is going to pay the back property taxes. This current recession has delayed and caused severe financial hardship on Vandalia. Therefore the Waldo Historic Preservation Society has formed and we are working to help Vandalia with preserving the hotel.

The building is in a mothball stage and we are working with Vandalia to further protect this historic structure in our city. One of our main goals is to help with additional mothballing. The roof is one of our major concerns.

The interior pictures were taken from inside of the building and these areas are not viewable from the outside of the building. So for Mr Cahal to enter the building and take pictures to me is evident of trespass not only on Vandalia's part, but, also on the City of Clarksburg's part from the condemnation order.

You can follow us on Facebook Save the Waldo Hotel Clarksbug WV US and are more than welcome to join and comment on the page.

A web page is currently under development for The Waldo Hotel Preservation Society.

Pt. Lobos Lone Pine (tree) - "don't shoot me!"

I recall back in the 1980s, a time when Japanese corporations owned a good chunk of Carmel/Pebble Beach (including the famous golf course). It was then asserted that no one could photograph the iconic lone pine tree on the beach (without permission). Dunno if/how this situation changed. We, as a people/society have been crazy for a long time.

Re: The Architect, not the owners, hold the copyright monopoly here.

Who said anything about the drawings here? The drawings of the Architect are not in question here. What is in question is the copyright of the photos taken while he trespassed in the building. Trespassing in the state of WV are both criminal and civil! Check this link out http://www.legis.state.wv.us/wvcode/code.cfm?chap=61&art=3B
Also the building is under a condemnation order due to the current conditions (but is not in danger of being torn down)at this time.

The CEO of Vandalia was well within her rights and I believe very fair towards Mr Cahal.

1. The photos are evidence of trespass.
2. The city of Clarksburg can press charges on their own without Vandalia's knowledge.
3. The CEO of Vandalia has worked with historic preservation on a Federal Level and knows what she is talking about.
4. She fairly gave Mr. Cahal a chance to present the paperwork that he may have in his possesion to show where he had permission to do this.
5. He is selling the pictures and is profiting from it, she also gave him an alternative to provide funds to the Waldo Hotel Historic Preservation Society to help with the preservation efforts.
6.If someone has commited a crime what has given them the right to profit from it?

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The photos taken were not in a visible place. Yes, without permission he trespassed on the property. The back of the hotel is fenced and anyone can see the pictures of the cleanup in August on the facebook page Revive the Waldo Hotel Clarksburg WV USA. The front doors are also secured.

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First off, the trespass statute that you refer to does NOT state that No Trespassing signs relate to structures - they relate only to "posted land". Simply because an (apparently) unoccupied building doesn't have a No Trespassing sign doesn't give you the right to enter that building; even if a door is wide open.

Further, the clause about the owner requesting that you leave only pertains to cases where you were initially "authorized, licensed or invited", which you apparently were not.

In other words, you have not removed any doubt that you are "free from any future prosecution on those specific charges". In fact, you've undoubtedly admitted that you are in fact guilty of trespassing.

If you will notice in WV law there is the mention of fencing...the back of the building is fenced in with no gate! The way people have been entering the building to destroy, trespass, etc...clearly violates state law and the laws of Code Enforcement in the city of Clarksburg.

Plus, the last use by the former owner was not a hotel but low income housing.

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You can't claim after the fact that there is now a fence, or that there is now a sign, or that there is now a boarded entrance. You can only make claims of that period back in June that an entry was made.

I've already cited the Code, which clearly stated that it is not trespass if a) the occupant was not told to leave by the owner of the building, and b) if it was not witnessed that such a trespass actually occurred. You can't base your argument on circumstantial evidence - does it show trespass? No. Does it show entry? No. The door was wide open and there were no posted signs - and at most, with evidence, it is a $100 and less fine.

That's nothing.

If you have something more concrete - you know, that shows willing trespass and forced entry, then that is something. Until then, you have no case. (Plus, you aren't the owners - you represent a Facebook group.)

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No, such statue refers to the posted land, which in this case can represent a building. Not that Vandalia was too up to knowledge about copyright, but they are seemingly not up to the current statues either.

Chapter 61, Article 3B, §61-3B-1
""Posted land" is that land upon which reasonably maintained signs are placed not more than five hundred feet apart along and at each corner of the boundaries of the land, upon which signs there appears prominently in letters of not less than two inches in height the words "no trespassing" and in addition thereto the name of the owner, lessee or occupant of the land."

"Where lands are posted, cultivated or fenced as described herein, then such lands, for the purpose of this article, shall be considered as enclosed and posted."

"Any person who knowingly enters in, upon or under a structure or conveyance without being authorized, licensed or invited, or having been authorized, licensed or invited is requested to depart by the owner, tenant or the agent of such owner or tenant, and refuses to do so, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars."

Note the second half of that statement. Then,

"It is an unlawful trespass for any person to knowingly, and without being authorized, licensed or invited, to enter or remain on any property, other than a structure or conveyance, as to which notice against entering or remaining is either given by actual communication to such person or by posting, fencing or cultivation."

Re: Re: Re: its not copyright that is the problem

That's hardly relevant. A property release is not even applicable in this case because there is no chance of defamation, unless that in some way the building itself develops feelings and remorse. I am well aware of releases - I shoot studio work, weddings and the like, and have to sign hundreds of these a year. Not one that I have signed requires me to sign a waiver to photograph a physical structure.

If that was the case, I'd need to sign a waiver for every event I photographed. Or for every building I've shot interiors for. Or for every detail photographed on private property.

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§61-3B-1. Definitions.
As used in this article:
(1) "Structure" means any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.

...

§61-3B-2. Trespass in structure or conveyance.
Any person who knowingly enters in, upon or under a structure or conveyance without being authorized, licensed or invited, or having been authorized, licensed or invited is requested to depart by the owner, tenant or the agent of such owner or tenant, and refuses to do so, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars.

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Basically, you being on the (un)"posted land" was presumably ok. You entering the structure was not ok.

The part you post about "posted land" is only a definition, as was what I posted about structure. A definition is used to clarify wording of the statute.

"§61-3B-2. Trespass in structure or conveyance" does not use the term "posted land"; however, it does use the term "structure". The definition of "posted land" does not come into play when interpreting §61-3B-2, as that section does not use the term "posted land" within it.

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What part of "...is requested to depart by the owner, tenant or the agent of such owner or tenant, and refuses to do so..." do you not understand?

I understand it completely. Obviously you don't understand the preceding "or having been authorized, licensed or invited" part. Were you "authorized, licensed or invited"? If not, then the rest of that statement is not relevant.

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Please post a specific photo that details where the sign was posted. Per code, where were the "No Trespassing" signs? Were they spaced 500' apart (if they even existed, which they outright admitted they did not)? Were the signs clearly visible? Were the letters more than 2" in height?

Doesn't matter if Clarksburg posted a notice. If it was not explicit, invisible, and not conforming to the code above from the state, then your statement is based purely on hearsay and pure wishing.

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So, when you go backpacking in the Mon National Forest and you trespass onto private property, whereas there was no signage mentioning of no trespass posted 500' apart, with letters that are +2" high, and clearly visible, did you trespass?

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The No Trespassing signs are only required to define trespassing on "posted land". As I mentioned earlier, the definition of "posted land" does not come into play when interpreting §61-3B-2, as that section does not use the term "posted land" within it.

Put simply, the lack of "No Trespassing" signs does not (by itself) allow you to enter a structure without permission.

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Here we go:

If you trespassed onto private property, this case being the Waldo, and there was no signage mentioning of no trespass posted 500' apart, with letters that are +2" high, and clearly visible, did you trespass?

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I cannot believe how stupid you are.

On both counts, yes, you trespassed. I've explained the difference between the two scenarios more than once. It really isn't a difficult concept to grasp, and is spelled out quite clearly in the laws both you and I have posted.

'§61-3B-2. Trespass in structure or conveyance.
Any person who knowingly enters in, upon or under a structure or conveyance without being authorized, licensed or invited, or having been authorized, licensed or invited is requested to depart by the owner, tenant or the agent of such owner or tenant, and refuses to do so, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars.

If the offender is armed with a firearm or other dangerous weapon while in the structure or conveyance, with the unlawful and felonious intent to do bodily injury to a human being in said structure or conveyance at the time the offender knowingly trespasses, such offender shall, notwithstanding the provisions of section one, article seven, chapter sixty-one of this code, be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, or be confined in the county jail for a period not to exceed twelve months, or both such fine and imprisonment.'

I'll break this down for people who can't read.

'Any person who knowingly enters in, upon or under a structure or conveyance...'

Refer to the definitions of structure and conveyance, as defined in "§61-3B-1. Definitions"

As used in this article:

(1) "Structure" means any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.

'or having been authorized, licensed or invited is requested to depart by the owner, tenant or the agent of such owner or tenant, and refuses to do so'

Here is obviously where you are having trouble. The law is stating that the owner, tenant or "agent of such owner" has to request that you leave ONLY if you had been initially authorized, licensed or invited. If you were never authorized, licensed or invited in the first place, you are guilty of trespass regardless of whether anybody tells you anything.

shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars.

If the offender is armed with a firearm or other dangerous weapon while in the structure or conveyance, with the unlawful and felonious intent to do bodily injury to a human being in said structure or conveyance at the time the offender knowingly trespasses, such offender shall, notwithstanding the provisions of section one, article seven, chapter sixty-one of this code, be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, or be confined in the county jail for a period not to exceed twelve months, or both such fine and imprisonment.

Within the tags is the ENTIRE BODY of §61-3B-2, titled "Trespass in structure or conveyance". There is no mention of no trespassing signs, posted land, etc.

Based on what you've said, you have clearly admitted violating §61-3B-2.

Your arguments are valid arguments against being charged with §61-3B-3, titled "Trespass on property other than structure or conveyance". That is the section of statute that deals with no trespassing signs, posted land, etc.

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Uh...

Entering the building is a violation of West Virginia State Code §61-3B-2, Trespass in structure or conveyance. If Vandalia didn't serve you notice then they'd be in violation of Clarksburg city ordinance 1705, Condemned Structures.

Vandalia is not claiming copyright, the photographer is! They cannot let him claim copyright to something they own, or it could be taken as abandonment of rights to the building.

There is no $700,000 owed on the building. The taxes were paid by a law firm in Charleston, and Vandalia has until May to pay them $5500 to redeem it.

Re: Uh...

Vandalia is not claiming copyright, the photographer is! They cannot let him claim copyright to something they own, or it could be taken as abandonment of rights to the building.

Speaking of Uh... You aren't making any sense here. He is claiming copyright to the photos in which he took, which, to the best of my knowledge, he has. He is not claiming ownership of the building, the land it is on, etc.

However, his ability to use those photographs for "commercial use" (which is not the same as "advertising") seems to be in question. Had he simply posted them to a blog, I think the only repercussions could be charges of trespassing. However, selling prints of those photographs and/or posting them on a "blog" that asks for "donations" apparently falls into different (albeit vague) legal grounds.

Funding

What about the cozy relationship between Vandalia Heritage Foundation President Laura Kuhns and former Rep. Alan Mollohan and Jeffrey Burum, a wealthy California developer that was just charged in a bribery case? After all, 92% of Vandalia's funding came from earmarks from Mollohan from 1999 to 2006. And Kuhns had donated Mollohan $35,000 which went unreported for payments on properties at Bald Head, NC. What about Kuhn, who was involved with the NHDC and now serves on the National Community Renaissance board? (The NHDC received $31 million in earmarks from Mollohan beginning in 2001 that lasted for five years.)

Re: Uh...

You are really confused aren't you? I can't comment about your state's trespass laws - although I note that others here seem to disagree with you.
A little education is in order:

1) Copyright does not have to be "claimed" it automatically applies. The law is quite clear the photographer has the copyright.

2) The abandonment argument is a trademark issue. Trademark and copyright are quite distinct legal concepts. There is NO trademark issue here - so your raising of the "abandonment" issue is nonsense.

3) Ownership of the physical structure is completely separate from, and unaffected by any copyright or trademark issues.

Your statement "They cannot let him claim copyright to something they own, or it could be taken as abandonment of rights to the building." is so wrong in so many ways that it is a strong contender to be the biggest load of nonsense that I have ever seen in my life!

Re: Re: Uh...

In the initial e-mail, they claimed copyright over the photographs believing that the building or land owner has copyright claim over a photograph (or piece of art, et. al.). I had to correct them by stating that the creator of the work - in this case, the photographer, has sole copyright claim. That has already been sorted out.

I'm not for sure what the above is claiming. I never claimed "ownership" or "copyright " of the building itself - that's just silly and was never stated.

Re: Uh...

"If Vandalia didn't serve you notice then they'd be in violation of Clarksburg city ordinance 1705, Condemned Structures."

Can you be specific? Or are you referring to:

"1705.09 EMERGENCY MEASURES.
(a) Imminent Danger. When, in the opinion of the Building Inspector or his
designated representative, there is imminent danger of failure or collapse of a building or
structure which endangers life, or when any structure or part of a structure has fallen and life
is endangered by the occupation of the structure, or when there is actual or potential danger to
the building occupants or those in the proximity of any structure because of explosives,
explosive fumes or vapors or the presence of toxic fumes, gases or materials, or operation of
defective or dangerous equipment, the Building Inspector or his designated representative is
hereby authorized and empowered to order and require the occupants to vacate the premises
forthwith. The Building Inspector or his designated representative shall cause to be posted at
each entrance to such structure a notice reading as follows: "This Structure Is Unsafe and Its
Occupancy Has Been Prohibited by the Building Inspector." It shall be unlawful for any person
to enter such structure except for the purpose of securing the structure, making the required
repairs, removing the hazardous condition or of demolishing the same."

With no such signs posted months ago (remember, this happened earlier this year), then any claim of violation is bogus. There would need to be direct evidence that such signage, as indicated other with the "No Trespassing" signs, existed. Without the burden of proof from the prosecutor, of evidence of both signage from earlier this year, then no claim can be made in a court.

Re: Re: The Architect, not the owners, hold the copyright monopoly here.

1. The photos are evidence of trespass.
2. The city of Clarksburg can press charges on their own without Vandalia's knowledge.
3. The CEO of Vandalia has worked with historic preservation on a Federal Level and knows what she is talking about.
4. She fairly gave Mr. Cahal a chance to present the paperwork that he may have in his possesion to show where he had permission to do this.
5. He is selling the pictures and is profiting from it, she also gave him an alternative to provide funds to the Waldo Hotel Historic Preservation Society to help with the preservation efforts.
6.If someone has commited a crime what has given them the right to profit from it?

1) Posibly, but that would have to be proven in court and has exactly ZERO bearing on the copyright of the pictures.
2) Yes, Yes they can. What does that have to do with anything?
3) {{Citation Needed}}
4) Ok, so? This would relate to the ALLEGED trespass, and again has no bearing on the copyright of the pictures.
5) Your point? They are his pictures, he can do as he pleases. The problem is that it is implied that he should be reqired to support the Waldo Hotel Historic Preservation Society and/or help with the preservation efforts. This is not the case.
6) Nobody has yet proven in a court of law that a crime has even been comited. Also I could be wrong and IANAL but I do not belive that something as minor as tresspass would set of the "Son of Sam" laws I suppose that there is a posibilty of asset forfeiture, however that would result in the ownership of the pictures going to the government NOT to the Waldo Hotel Historic Preservation Society.
I am going to stop now before my rant runs out of control...

I wonder if the below sentence had anything to do with the original letter to the photographer
"But as uncovered by two watchdog organizations, the Vandalia Heritage Foundation may be corrupt, with political ties to a former representative that led a disgraced office."

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You have it totally wrong. The fence has been there for several years and to enter the building he would have to have breached the fence!! He took pictures in the inside of the building, which was done by unlawful entry to the building. It is apparent that you are not familiar with the laws of our state! I posted a link to the WV Legislation with the laws for trespassing...go read them. To enter a building like this without permission from the owner is criminal trespass in this state. I bet if someone thought your home was nice and decided to enter it and take pictures inside and then post them online then sell them you would not be a happy camper either. Someone who came onto my property and entered my home was arrested for trespassing! I did not have trespass signs posted. So I know what I am talking about.

Also Vandals have been breaking into the building and stealing artifacts and such. still if they did not damage the building and someone entered the building it is still trespass.

And not I am not just a member of a facebook page, but, with an organization in the City of Clarksburg that is working to preserve the Waldo. Would you like the phone number to our prosecuter or police chief,,,,would be more than happy to it as they have the right to arrest and have warned people from entering the building and they do not have to have Laura's permission to do so. The building is under a condemantion order which gives the city presidence! But, please not the building is not in danger of being torn down at this time, but, the conditions warranted it.

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What this person did is the equivalent of breaking into the Louvre, taking pictures of the Mona Lisa and posting them on a his web site for personal and financial gain. The only difference: he didn't get caught when illegally trespassing.

But then again, when has TD ever agreed with laws. I mean, c'mon, stealing copyrighted materials is just a manifestation of someone else's business model. DUH!

Re: Re: its not copyright that is the problem

TAKEN FROM THE ABANDONED WEBSITE YOU DUMB PIECE OF SHIT.

So as far as I can tell...this was used for commercial purposes.

"Looking to purchase prints of these beautiful abandonments for your home or office? Check out shermancahal.com, where I offer photographic prints of abandonments and more from 5x7 to 24x30. Digital copies are also available, as well as custom printing options!"

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It's really not worth fighting these people. They essentially sit around all day and stoke Mike's "I-know-everything-except-for-how-to-obtain-a-good-looking-wife" ego. They drink the kool-aid and regurgitate his unbelievably misguided interpretations of vague laws.

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Taken from the abandoned website. So what's that you're saying about only needing this for commercial reasons? Oh that's right, you only regurgitate what Mike says, instead of actually looking at the facts. But what's new, bunch of fucking imbeciles on this site.

"Looking to purchase prints of these beautiful abandonments for your home or office? Check out shermancahal.com, where I offer photographic prints of abandonments and more from 5x7 to 24x30. Digital copies are also available, as well as custom printing options!"

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You mean thinking like YOU isn't my strong point, as in, these pictures are being used for commercial purposes, meaning the picture taker needs consent from the building owner. Taking FROM the abandoned online site.

Fucking douchebag. You just got owned.

"Looking to purchase prints of these beautiful abandonments for your home or office? Check out shermancahal.com, where I offer photographic prints of abandonments and more from 5x7 to 24x30. Digital copies are also available, as well as custom printing options!"

Re: Re: Re: its not copyright that is the problem

You are correct, the picture taker needs consent AS HE IS USING THEM FOR COMMERCIAL PURPOSES. Taken from the abandoned web site:

"Looking to purchase prints of these beautiful abandonments for your home or office? Check out shermancahal.com, where I offer photographic prints of abandonments and more from 5x7 to 24x30. Digital copies are also available, as well as custom printing options!"

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Put down the kool-aid an actually do some fucking thinking you douchebag. You need consent to use pictures in commercial ways...taken from the abandoned site.

How does it feel to be a complete fucking moron?

"Looking to purchase prints of these beautiful abandonments for your home or office? Check out shermancahal.com, where I offer photographic prints of abandonments and more from 5x7 to 24x30. Digital copies are also available, as well as custom printing options!"

Re: Re: Re: its not copyright that is the problem

> Actually, i'ts pretty much the same after a
> quick search on google, here is US equivalent

None of that says a release is required. All it says is that it's something you might want to do to indemnify yourself against someone suing you, but the law doesn't require it. Nor does the law give the owner of a building or a tree a cause of action if you don't obtain a release first. They can sue you anyway, but it will be their burden to prove you've breached some kind of duty and since the law doesn't impose any such duty, it will be an awful hard case for them to prove.

However, lawsuits are time-consuming and expensive to defend even when you are completely in the right, so that's why those releases are touted as a good idea even if they're not legally required.

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You can see the outside of the building from a public place. The inside of the building pictures the photographer would have had to trespass to get access to take photos. Going into the building and taking pictures without the express permission of the owner is the issue at hand with Vandalia.

The windows on street level are boarded up so no pictures could have possibly been taken of the inside of the building as people see of the inside of the building. Some of the pictures are in the upstairs of the hotel and not visable from the outside.

The back of the building is fenced in due to vandalism and theft. People have repeatedly damaged the fence that encloses that area to enter the building.

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Also with building codes the state has adopted the "the national building codes" these are the codes that the city of Clarksburg uses. Code enforcement has condemed the building as it is unsafe. The condemnation order is posted at the front door and clearly states that no one can enter the premises, this is what gives Clarksburg presidence when they make an arrest for unauthorised individuals entering the building and they do not have to ask Vandalia's permission to arrest.

For someone to state that there were no trespassing signs is a misgiving on that person(s) part. Or even to say the building owner did not ask them to leave is another misgiving.

While I enjoy his photography and the story that he tells with his journalist photography, I can not endorse someone's methods such as this. When someone posted his link and photos on the Revive the Waldo Hotel facebook page, caused a flurry of people wanting to go into the building to clean the lobby, this damaged relationships with the City of Clarksburg, gave the newspaper the oppurtunity to publish very negative stories. An article and headlines in the newspaper warning of anyone's arrest if they went into the building.

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Sherman, at the back of the hotel there is a fence! did you not see it or not admitting it? The fence encloses the walkway to the boilder door which was chained shut. Somehow someone broke into that. It was evident that the fence post was bent from people entering the building. Yes, the owner was not there to ask you to leave, but, have you read our state laws? There is another link to that that I have posted on here that goes directly to the state of WV legislature.

The front door was broken out in August and now are boarded up. The police department is patroling that area regularly now and will make an arrest. The order at the front door clearly states that no one is to enter due to condemnation. So let's set the facts straight!

As being a memeber of a FB page, yes. As a concerned citizen, yes. Has working with a group called the Waldo Hotel Preservation Society that is working Vandalia, well I am more in the know of what is going on than just being a member of a facebook page.

The evidence is not circumstantial in the way I look at it...you took pictures inside of the building, posted them, and now admit to being in the building back in June. Yet you state that the fence and posting of a sign is after the fact. Isn't this rather misleading? And what proof do you have to this being after the fact? We have plenty here....code enforcement building permits, newspaper articles, etc.

You stated on your page that you were in the same boat with Vandalia to save the Waldo Hotel. Not so when you started a smear campaign against Laura Kuhns and Vandalia on your facebook Abandoned page! It sounds like some sort of Vendetta to me. How is this going to help restore and market this historic building?

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The side door - facing the library, and the front door were wide open. I never ventured to the back - why would I if the side door (months ago) was open?

I explained that in the original post and to Vandalia (which you are not a part of), which was agreed upon. Which is why this is a moot point - they aren't going ahead with any charges, and I am removing any prints that are for sale of the Waldo and in turn DONATING my prints (and funding) to YOUR foundation for use in upcoming fundraising.

I guess one did not speak to another - which is unfortunate, because that was what was conveyed to me in the phone call.

You know how to reach me. I am always more than willing to help your cause out, but if you are going to vilify me here, then my donations and money are out. I am not for sure why you are continuing down this path - read my original post and be sure to check back and see the commemorative print that has been designed (also discussed with Vandalia).

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Vandalia Heritage Foundation can claim copyright on their own photos, but not on somebody else's. The copyright on anyone else's photos belongs to whoever took the pictures.

As to the trespassing charge, maybe he took the interior pictures through a broken window, and didn't go inside at all. Besides, does Vandalia own the building? If not I don't see where they have any standing to bring trespassing charges.

Claiming rights not granted by copyright law is copyright abuse, and is a prosecutable crime just as much as infringing someone else's copyright.

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The sign is posted at the front door and is within the codes that apply to code enforcement. As soon as I can get a photo for you I will send it to you.

The 500 ft apart does not apply to buildings of this type, but, I believe when there is 5 acres or more. The building was last used as a hotel until the late 1960s or early 1970s. It was then sold to Salem College in the 70s and used as dorms for the Clarksburg Campus. The Arnett's bought the building and turned it into low income housing until they lost the building. Then the building was bought and then sold to Vandalia. When the recession hit, funding became sparse for the building and as you saw it when you were there it is suffering. As a landmark it is always referred to as the Waldo Hotel.

The sign posted by code enforcement follows the state laws under the "the national building codes" Therefore it does not apply to the No Tresspassing sign code that you quoted. This is not hearsay, but, fact. Neither is this pure wishing on my part. The sign is not invisable, but, posted at the front doors as required by law.

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I will go back and read your posts. It is not my intention to villify you. I would love to chat with you! I honestly think that your work is amazing. I was not aware of this page until someone pointed it out to me today. My honest concern is the value of this structure to our community. I just do not want anybody to get the idea that they can just come here and enter the building at will and now what has taken place. We have had a war here so to speak and I will tell you about that. I am honestly glad that you are going to work with us. I am very sorry if I had offended you.

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I went to your page and saw the picture you have with the red door on the Pike st side. Is this what you were talking about? If so I would like to clariy about this confusion. The door that is fenced in is on the back of the building.
The red door is normally covered with the boarding that you see around the windows. It is part of the mothballing, for that wooden cover to be removed this meant that there were workers authorized to go in. Why it was unlocked I do not know as you never ran into them in the building. The front doors border 4th St. Recently, someone broke those windows and this is the reason it is now boarded up. I post this here to let everyone know where the misunderstanding could possibly be. You see I live here, so I know what it should look like. Plus those of us volunteering keep an eye on the building regularly, as well as the police department patroling regularly. I am very thankful that you were not injured while in there.

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What? That makes very little sense. In that case, no architectural work in a private building can possibly be protected, since through the same line of logic, the building is visible from a public place (so therefore the prior applies).

Yes, it seemed odd to me too - but that does seem to be the wording. I think the actual intention of this is to distinguish a building from a sculpture or architectural model. After all just about any building is visible from space - which is the ultimate "public place".

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What this person did is the equivalent of breaking into the Louvre, taking pictures of the Mona Lisa and posting them on a his web site for personal and financial gain.

I totally agree with you except of course you do not need to break in - because you will find that the Louvre does not object to you taking pictures of the Mona Lisa - since the painting is in the public domain.

Here's how you handle it.

The threatening letters always have the douchebag lawyer's name on it. As soon as you get it, you find out where they live. Then, in the dark of night, you counter their threat with a twelve ounce ball-peen hammer, until the floors, walls, and possibly the ceiling are kind of pink and gray. Problem solved! No attorney fees needed. No appeals. No worries. Works every time!

Here's how you handle it.

The threatening letters always have the douchebag lawyer's name on it. As soon as you get it, you find out where they live. Then, in the dark of night, you counter their threat with a twelve ounce ball-peen hammer, until the floors, walls, and possibly the ceiling are kind of pink and gray. Problem solved! No attorney fees needed. No appeals. No worries. Works every time!

This is so funny... ONE the photos were taken what about a year ago now? I think that is beyond a time frame when an official would pursue a legal claim of trespass.

TWO the vandalia has no right to the photos there was not a NO TRESPASS sign however the building is condemned!
If they were able to get anything pinned to him it would be a simple tresspass ticket and the CITY (who they feel has done nothing but block their efforts) would reap the benifits of the fine. He still would retain ownership of his photos.

Its really funny that initially the group used his photos to show the interior of the building and how beautiful it still was. To me it looks like they are trying to find a way to rais funds fast by threatening to file a frivilous law suit.